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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Carroll

No. 94-521

UNIT OWNERS ASSOCIATION OF SUMMIT VISTA LOT 8 CONDOMINIUM

v.

ALVIN H. MILLER, INDIVIDUALLY,

AND AS TRUSTEE OF THE SUMMIT VISTA LOT 8 TRUST

May 16, 1996

Michael, Jones & Wensley, of Rochester (Philip S. Rader on
the brief and orally), for the plaintiff.

McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Jack
B. Middleton and William S. Hewitt, Jr. on the brief, and Mr.
Middleton orally), for the defendant.

JOHNSON, J. This appeal arises out of an action by an association of
condominium owners against the defendant, Alvin Miller, who is the developer of
the Summit Vista Lot 8 condominiums, both in his capacity as trustee of the
Summit Vista Lot 8 Trust, and individually, for damages to the common areas of
the condominium project resulting from a deficiently designed drainage system.
The plaintiff's writ made numerous allegations, including violations of the
Consumer Protection Act, RSA chapter 358-A (1995), and the Condominium Act, RSA
356-B:65 (1995). The Superior Court (Dickson, J.) ruled for the plaintiff
and awarded $62,202.36 in damages. The court also awarded attorney's fees based
on violations of the Consumer Protection Act. See RSA

358-A:10, I. The plaintiff appealed, arguing that the court erred in not
awarding double or treble damages pursuant to RSA 358-A:10, I. The defendant
cross-appealed, arguing that the court erred in holding him personally liable
for violations of the Condominium Act and the Consumer Protection Act. We affirm
in part, reverse in part, and remand.

The plaintiff is an association of owners of condominium units located in Lot
8 of the "Summit at Linderhof" condominium development in Bartlett. Seegenerally RSA 356-B:35-:47. In 1980, the defendant entered into an
agreement with Berlin Cooperative Bank under which he would create a plan to
develop the site, arrange for all necessary regulatory approvals, and eventually
purchase the site when market conditions were favorable for condominium
development. The Lot 8 Trust was created for the purpose of holding title to Lot
8 during the construction and sales phases of the condominium project, and the
defendant, as trustee, was the named declarant for purposes of condominium
registration with the attorney general's office. See RSA ch.
356-B.

Lot 8 at the "Summit at Linderhof" is located at the top of a steep hill and
is comprised of three buildings containing a total of twelve condominium units.
The development's marketing material boasted that the project was "a resort high
above the rest, where winter is marked by snow-capped mountains and spring
brings lush greenery and roaring white water." The brochure proved to be
unusually prescient; in the spring of 1987, extensive damage was caused to the
development's common areas as the result of a significant rainstorm, which,
combined with snow melt, washed away the leach fields of adjacent lots and
severely damaged the units' drainage system.

358-A. After a five-day bench trial, the court found the defendant liable
individually and as trustee, and this appeal followed.

I. Condominium Act

The defendant contends that the trial court erred in finding him
personally liable for violations of the New Hampshire Condominium Act, RSA
356-B:65, I, III. The Condominium Act mandates that

[a]ny declarant who disposes of any interest in a condominium unit in
violation of this chapter, or who in disposing of any such interest omits a
material fact required to be stated in a registration statement or public
offering statement . . . is liable to the purchaser of such interest . . . .

RSA 356-B:65, I. The trial court granted the plaintiff's request for a ruling
of law that the defendant, in his capacity as trustee, violated the statute "in
that [he] omitted the material fact that the drainage system was wholly
inadequate." Further, the court found the defendant personally liable for
damages in his individual capacity because of his "material participation in the
disposition of the units" and his knowledge of the material omission. See
RSA 356-B:65, III.

We proceed, therefore, with the defendant's first argument that a finding of
personal liability under RSA 356-B:65, III was error, noting that we will not
disturb the findings of the superior court unless they were unsupported by the
evidence or erroneous as a matter of law. SeeC & M Realty Trust
v. Wiedenkeller, 133 N.H. 470, 476, 578 A.2d 354, 358 (1990).

The defendant argues that the trial court's ruling was erroneous because an
individual cannot be held personally liable for acts of a corporation absent
evidence that the corporate form was used to promote injustice or fraud.
See, e.g., Terren v. Butler, 134 N.H. 635, 639, 597 A.2d
69, 72 (1991). The plaintiff answers that RSA 356-B:65, III is specifically
designed to allow condominium owners to pierce the corporate veil and impose
liability on individual participants. "Because this is an issue of
statutory construction, we first examine the words of the statute." Beaudoin
v. Marchand, 140 N.H. 269, 270, 665 A.2d 745, 746 (1995) (citation omitted).

RSA 356-B:65, III, states:

Any person who materially participates in any disposition of any interest in
a condominium unit in the manner specified in paragraph I and knew of the
existence of the facts by reason of which the liability is alleged to exist
shall also be liable jointly and severally with the declarant . . . .

Further, "we presume that the legislature does not enact unnecessary and
duplicative provisions." State v. Willard, 139 N.H. 568, 570, 660 A.2d
1086, 1087 (1995) (quotation omitted). Accordingly, we find that RSA 356-B:65,
III supplements, and is dependent upon, the cause of action set forth in RSA
356-B:65, I. In order for paragraph III to apply, a plaintiff must first show
liability of a declarant under paragraph I. Paragraph III thus allows
condominium owners to reach "persons" other than the declarant who materially
participated in and had the requisite knowledge of the prohibited acts. We hold
therefore that the defendant, a natural person capable of holding title in
property, can be jointly and severally liable under RSA 356-B:65, III.

The defendant contends that our holding in Terren, 134 N.H. at 639,
597 A.2d at 72, requires that a plaintiff must present evidence of injustice or
fraud in order to pierce the corporate veil. Terren, however, addressed
the ability of a plaintiff to pierce the corporate veil in the case of a breach
of warranty action under RSA 356-B:41 (1991). This court specifically did not
address "whether, or to what extent, [the defendants] personally made
misrepresentations, [or] whether they are liable for misrepresentations in the
offering statement" under RSA

356-B:65, I and III. Terren, 134 N.H. at 641, 597 A.2d at 73.

The defendant next argues that the finding that he materially participated in
the disposition of the condominium units "was legally deficient as a matter of
law." He alleges that the trial court erred by relying solely on a finding that
the defendant, as trustee, executed the deeds to certain units in the complex.

The superior court, however, granted at least two other findings of fact that
would satisfy the material participation and knowledge requirements of RSA
356-B:65, III, including that the defendant "materially participated in the
disposition of the condominium units in [his] individual capacit[y]. . . . [and]
knew that no comprehensive drainage system had been installed for the entire
condominium project before undertaking sales." We will not disturb the findings
of the trial court unless they are unsupported by the evidence. SeeTerren, 134 N.H. at 640, 597 A.2d at 72. Ample evidence supports the
trial court's findings, including evidence that the defendant supervised the
design, location, and marketing of the development and arranged for all
statutory approvals, including the filings with the attorney general. He also
supervised placement of the drainage system prior to the declarant taking title
to the property. On the registration statement filed with the attorney general's
office, the defendant, individually, was listed as the real party in interest.
Therefore, we affirm the ruling of the superior court finding the defendant, as
an individual, jointly and severally liable under RSA 356-B:65, I and III.

The defendant also argues that the trial court's finding of personal
liability was error because the plaintiff failed to allege sufficient facts to
support a finding that there was an omission of a material fact in violation of
RSA 356-B:65, I. We treat this issue as waived, however, because the defendant,
in his notice of cross-appeal, failed to raise the RSA 356-B:65, I,
claim.Cf. Appeal of Toczko, 136 N.H. 480, 487, 618
A.2d 800, 804-05 (1992).

II. Consumer Protection Act

The defendant argues that the trial court erred in holding him personally
liable under RSA 358-A:2, V and VII. The superior court's findings of fact and
rulings of law will be upheld unless they lack evidentiary support or constitute
a clear error of law. Patch v. Arsenault, 139 N.H. 313, 317, 653 A.2d
1079, 1082 (1995). In order to assess personal liability for acts of a trust
under the Consumer Protection Act, "[w]e will pierce the corporate veil and
assess individual liability . . . where the corporate identity has been used to
promote an injustice or fraud, or where the defendant has suppressed the fact of
incorporation." Gautschi v. Auto Body Discount Center, 139 N.H. 457, 462,
660 A.2d 1076, 1079 (1995) (citations omitted).

Unlike the provisions of the Condominium Act discussed above, the Consumer
Protection Act does not contain a specific provision that allows individuals to
be held liable for the acts of the "corporate" entity absent application of the
veil-piercing doctrine. Compare RSA 356-B:65, III ("person" can be held
liable for acts of a "declarant") with RSA 358-A:2 ("person" as unlawful
actor).

Because the findings of fact and rulings of law by the court and the
pleadings are devoid of any evidence that would support piercing the corporate
veil, cf. Gautschi, 139 N.H. at 462, 660 A.2d at 1079-80, we hold
that the trial court erred in finding the defendant personally liable for
violations of the Consumer Protection Act. In fact, the court's findings with
respect to the elements of a Consumer Protection Act violation refer to the
defendant specifically as "Defendant trustee[]." Therefore, we reverse the
ruling of the superior court holding defendant Alvin Miller individually liable
for violations of the Consumer Protection Act and remand the case for a
determination of what portion of the general damages awarded should be reversed
as to Alvin Miller.

III. Damages

The plaintiff argues that the trial court erred in not awarding double or
treble damages after finding a "knowing" but not "willful" violation of the
Consumer Protection Act. While we have reversed the ruling of the trial court
holding defendant Alvin Miller liable in his individual capacity, and therefore
this issue is moot with respect to Miller's personal liability, we must address
its merits with respect to the liability of Alvin Miller as trustee of the Lot 8
Trust.

Because the plaintiff's argument involves a matter of statutory construction,
we look first to the plain meaning of the statute. SeeGilmore v.
Bradgate Assocs., 135 N.H. 234, 237, 604 A.2d 555, 556 (1992). If the
statute is unambiguous, we must give effect to its plain and obvious meaning.
Patch, 139 N.H. at 316, 653 A.2d at 1082. The damages provision of the
Consumer Protection Act mandates that "[i]f the court finds that the use of the
method of competition or the act or practice was a willful or knowing
violation of this chapter, it shall award as much as 3 times, but not
less than 2 times, such amount." RSA 358-A:10 (emphasis added).

Therefore, the superior court erred by denying the plaintiff's request for
multiple damages based on the court's finding that the defendant's acts
constituted a knowing violation of the Consumer Protection Act. We remand this
case to the superior court to determine whether double or treble damages are
appropriate. See RSA 358-A:10.